Drug tests of pregnant women at issue

Supreme Court to rule on police use of routine hospital examinations

WASHINGTON -- The Supreme Court agreed yesterday to rule on the constitutionality of mandatory tests of pregnant women for drug use, then notifying police if abuse is detected.

The case will take the court for the first time into the emotional controversy over using criminal law to monitor women's conduct during pregnancy.

At issue is a contentious alliance among a public hospital, police and prosecutors in Charleston, S.C., that led to in-hospital arrests of pregnant women who tested positive for drugs.

Some aspects of that program have been extended statewide, with hospitals and clinics required to report women who fail the tests to child welfare authorities. Arrests at hospitals are reported to have stopped but not follow-up prosecutions.

With officials in Charleston initially taking the lead, prosecutors across the state have made increasing use of child-abuse or neglect laws against women who turn up at hospitals for pregnancy care then are detected to be drug abusers. The prosecutors contend that the pregnant women have intentionally endangered their fetuses by abusing drugs.

When the justices hold a hearing on the new case in October, they will not focus on the constitutionality of charging the women. Two years ago, the court declined to hear an appeal by two women prosecuted for child neglect after testing positive for drugs.

Instead, the court will review the validity of gathering the evidence for criminal prosecution by hospital drug tests -- especially when police have no search warrant and the women are not told the test results will be passed to police.

If the testing is struck down, prosecution would be more difficult and thus less likely.

Over the past 11 years, the court has upheld a variety of mandatory drug-testing programs related to public safety. It has never upheld a program under which tests were used explicitly for criminal prosecutions, though, and it has cast doubt on the constitutionality of doing so without a warrant.

Among the specific issues the court will study is whether testing that is done partly for medical reasons would be unconstitutional if the results are handed over to police and prosecutors.

Lynn R. Paltrow, a New York City women's rights lawyer who has been challenging the South Carolina alliance for six years, said that advocates for pregnant women have no problem with urine testing, if the results are kept confidential and are used to aid in treating the women.

At stake in the South Carolina case, she said, are "drug searches -- a joint hospital-police policy of searching pregnant women for evidence of drug abuse, to be turned over to the state for punishment, not for treatment."

Robert H. Hood, the attorney for the hospital and its staff, argued that the institution is not a part of government and thus is not bound by the Constitution's Fourth Amendment ban on unreasonable seizures.

But, in any event, Hood said, the women involved consented to having their urine tested as a part of routine medical exams when they were treated at the hospital.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., upheld the drug testing, saying the aim of the program was to protect health and safety, particularly of the fetuses the women were carrying.

The testing program was adopted, the appeals court said, after the staff at the Medical University of South Carolina saw a sharp increase in pregnancies affected by cocaine use.

Ten Charleston women who were arrested after testing positive for drugs at the hospital appealed the case to the Supreme Court, arguing that the appeals court approved "a radical extension" of drug-testing authority.

Those women sued the hospital, its trustees and several staff members, along with the city of Charleston.